Federal Court of Australia

Narda Holdings Pty Ltd, in the matter of Cafe 24/7 Pty Ltd (in liq) [2026] FCA 1043

ORDERS

THE COURT ORDERS THAT:

1. The time within which Leah Jane Disibio may apply to set aside the examination summons served on her on 2 October 2025 be extended to 9 October 2025.

2. By 14 August 2026, Narda Holdings Pty Ltd provide to the Court and each of the interested persons copies of the examination summonses addressed to Aaron Marciano Disibio, Vincent James Fazzalari, Leah Jane Disibio and Anna Fazzalari, amended in accordance with the Court’s reasons, and identify any further orders which it contends should be made to give effect to, or in light of, the Court’s reasons.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1 This is an interlocutory application seeking the setting aside, or in the alternative, variation of examination summonses issued pursuant to orders made by a registrar of the Court. The interlocutory application also seeks inspection of a confidential affidavit filed in support of the application for examination summonses.

2 The plaintiff in the proceeding is Narda Holdings Pty Ltd (Narda). Narda is the franchisor of the Café De Vili’s franchise system. Under that system, franchisees operate bakery cafés under the “Café De Vili’s” brand and business model and retail bakery products that are manufactured and supplied by Vili’s Family Bakery Pty Ltd (Vili’s). On 31 December 2019, Narda entered into a franchise agreement with Cafe 24/7 Pty Ltd (Café 24/7), whereby Narda, as franchisor, granted Café 24/7 a franchise to operate a Café De Vili’s from a premises in Elizabeth, South Australia (Vili’s Elizabeth).

3 Aaron Disibio and Vincent Fazzalari are the directors of Café 24/7. Leah Disibio is the wife of Mr Disibio, and Anna Fazzalari is the wife of Mr Fazzalari. Ms Disibio and Ms Fazzalari are also the sole directors and sole shareholders of SPB Elizabeth Pty Ltd (SPB Elizabeth), SPB Investments Pty Ltd (SPB Investments), SPB Ridgehaven Pty Ltd (SPB Ridgehaven), and SPB Thebarton Pty Ltd (SPB Thebarton).

4 On 25 September 2025, on the application of Narda, a registrar of the Court made orders pursuant to ss 596A, 596B and 596D of the Corporations Act 2001 (Cth), against each of Mr Disibio, Mr Fazzalari, Ms Disibio and Ms Fazzalari (collectively, Examinees). The orders are as follows (Examination Orders):

1.    Pursuant to section 596A of the Corporations Act 2001 (Cth) (the Act), Mr Aaron Marciano Disibio be summoned to attend before this Court to be examined in respect of the examinable affairs of [Café 24/7] at 2:00 pm on 31 October 2025 by summons in terms of Annexure A to these orders and to continue to attend day to day as required, until excused by the Court.

2.    Pursuant to subsection 596D(2) of the Act, Mr Aaron Marciano Disibio produce to the Court at his examination all books in his possession concerning the examinable affairs of [Café 24/7] as set out in Schedule 2 to the summons referred to in paragraph 1 above at his examination.

3.    Pursuant to section 596A of the Act, Mr Vincent James Fazzalari be summoned to attend before this Court to be examined in respect of the examinable affairs of [Café 24/7] at 2:00 pm on 31 October 2025 by summons in terms of Annexure B to these orders and to continue to attend day to day as required, until excused by the Court.

4.    Pursuant to subsection 596D(2) of the Act, Mr Vincent James Fazzalari produce to the Court at his examination all books in his possession concerning the examinable affairs of [Café 24/7] as set out in Schedule 2 to the summons referred to in paragraph 3 above at his examination.

5.    Pursuant to section 596B of the Act, Ms Leah Jane Disibio be summoned to attend before this Court to be examined in respect of the examinable affairs [of Café 24/7] at 2:00pm on 31 October 2025 by summons in terms of Annexure C to these orders and to continue to attend day to day as required, until excused by the Court.

6.    Pursuant to subsection 596D(2) of the Act, Ms Leah Jane Disibio produce to the Court at her examination all books in her possession concerning the examinable affairs of [Café 24/7] as set out in Schedule 2 to the summons referred to in paragraph 5 above at her examination.

7.    Pursuant to section 596B of the Act, Ms Anna Fazzalari be summoned to attend before this Court to be examined in respect of the examinable affairs [of Café 24/7] at 2:00 pm on 31 October 2025 by summons in terms of Annexure D to these orders and to continue to attend day to day as required, until excused by the Court.

8.    Pursuant to subsection 596D(2) of the Act, Ms Anna Fazzalari produce to the Court at her examination all books in her possession concerning the examinable affairs of [Café 24/7] as set out in Schedule 2 to the summons referred to in paragraph 7 above at her examination.

9.    When serving the summons referred to in these orders, the Plaintiff is also to serve a copy of these orders upon the person named in the relevant summons.

10.    The persons to whom examination summons[es] are addressed have liberty to apply to set aside or vary the examinations summons by interlocutory application, together with supporting affidavit material, within three business days of the service of the relevant summons and this order.

5 On 2 and 3 October 2025, pursuant to the Examination Orders, an examination summons was served on each of the Examinees (collectively, Examination Summonses).

6 On 9 October 2025, the Examinees filed an interlocutory application by which they seek:

(a) production of the confidential affidavit that was filed by Narda in support of the Examination Orders (Confidential Affidavit);

(b) orders that the Examination Orders and the Examination Summonses be set aside; and

(c) in the alternative, orders that the Examination Orders and Examination Summonses be varied on such terms as the Court considers appropriate.

7 The Examinees also seek an extension of one day for Ms Disibio to apply to set aside the examination summons issued to her. That order is not opposed by Narda, and should be made.

8 On 30 October 2025, I made an order that the Examinees be excused from complying with any obligation imposed by the Examination Orders or the Examination Summonses until further order, pending the determination of the interlocutory application.

9 In support of their interlocutory application, the Examinees read and rely on affidavits of Lisa Andonis dated 9 October 2025 and 17 October 2025. In response to the interlocutory application, Narda reads and relies on an affidavit of Alison Milisits dated 22 December 2025 (Milisits Affidavit) and an affidavit of David Trim dated 22 December 2025.

10 For the reasons explained below, I have concluded that the documents which the Examinees are to be required to produce should be varied. Narda should be given the opportunity to identify the proposed terms of amended examination summonses in accordance with these reasons, and to identify any further orders which it contends should be made to give effect to, or in light of, these reasons. The Examinees’ interlocutory application should otherwise be dismissed.

Background

11 On 31 December 2019, Narda and Café 24/7 entered into a franchise agreement, pursuant to which Café 24/7 was granted a franchise to operate Vili’s Elizabeth, initially from a premises in Munno Para, South Australia. The franchise agreement was subsequently amended so that the business could operate from premises at 1/88 Elizabeth Way, South Australia (Elizabeth Site).

12 There was a substantial delay between the execution of the franchise agreement in 2019 and the commencement of trading in approximately July 2022, as Café 24/7 was required to secure and fit out the Elizabeth Site before commencing operations. Vili’s Elizabeth then operated for approximately two years and three months before Mr Disibio and Mr Fazzalari resolved to wind up Café 24/7 in insolvency.

13 On 9 October 2024, James McPherson of Meertens Chartered Accountants was appointed as liquidator of Café 24/7. On 21 October 2024, Mr McPherson issued an initial report to creditors which identified substantial liabilities. Mr McPherson remained liquidator of Café 24/7 until 21 August 2025, when he lodged an ASIC Form 505 and ceased to act as liquidator. Café 24/7 nevertheless remained in liquidation following Mr McPherson’s ceasing to act.

14 In October 2024, shortly after Café 24/7 entered into liquidation, a business known as “St Peters Bakehouse – Elizabeth” (St Peters Elizabeth) commenced operation from the Elizabeth Site. St Peters Elizabeth is owned by SPB Elizabeth. As has already been noted, Ms Disibio and Ms Fazzalari are the sole directors and sole shareholders of SPB Elizabeth.

15 Approximately six months before Café 24/7 entered into liquidation and the Vili’s Elizabeth business was closed, entities associated with Ms Disibio and Ms Fazzalari acquired and commenced operating other St Peters Bakehouse businesses, namely:

(a) SPB Investments purchased the St Peters Bakehouse & Coffee Shop in St Peters;

(b) SPB Ridgehaven purchased St Peters Bakehouse – Ridgehaven; and

(c) SPB Thebarton purchased St Peters Bakehouse – Thebarton

(collectively, the Original St Peters Businesses).

16 On 13 September 2024, Narda issued a pre-action claim in accordance with Division 3, Chapter 7 of the Uniform Civil Rules 2020 (SA), to the Examinees, Café 24/7, Galaxy Blue Pty Ltd (Galaxy Blue), Disibio Property (SA) Pty Ltd, Fazzalari Property Pty Ltd, SPB Investments, SPB Thebarton and SPB Ridgehaven (Pre-Action Claim). The Pre-Action Claim detailed several claims relating to the Examinees and their business activities which Narda stated that it intended to make against the recipients of the Pre-Action Claim, including allegations of breaches of restraints and use of confidential information in respect of franchise agreements. On 27 September 2024, the recipients of the Pre-Action Claim provided their response to it. Narda notes that Café 24/7 was placed into liquidation approximately twelve days after the response to the Pre-Action Claim was provided.

17 On 2 May 2025, Narda commenced a proceeding in the Supreme Court of South Australia against Mr Fazzalari and Brenton Field, advancing claims in debt and breach of contract relating to a separate franchise agreement between Narda and, Galaxy Blue, in relation to a site in Blair Athol (Supreme Court Proceeding). Although a franchise agreement with Galaxy Blue in relation to the Blair Athol site is one of the matters the subject of the Pre-Action Claim, the Supreme Court Proceeding relates to other matters which are distinct from those raised in the Pre-Action Claim.

18 On 30 October 2025, Narda and David Trim commenced a separate proceeding in this Court (action SAD 240 of 2025), seeking the deferral of the deregistration of Café 24/7 and the appointment of Mr Trim as liquidator. On 13 November 2025, by order of this Court in that proceeding, Mr Trim was appointed as liquidator of Café 24/7. The nature of and present limitations on Mr Trim’s appointment are further discussed at [65]-[74] below.

19 Narda submits that its purpose in seeking the Examination Orders includes the proposed investigation into concerns that:

(a) Café 24/7, through Mr Disibio or Mr Fazzalari, may have transferred assets or other commercial benefits to SPB Investments, SPB Ridgehaven or SPB Thebarton before the liquidation of Café 24/7 for an undervalue, with a view to furthering the interests of the Original St Peters Businesses to the detriment of Narda (Transfer Concerns);

(b) Café 24/7, through Mr Disibio or Mr Fazzalari, may have shared confidential and commercially sensitive information in relation to the Vili’s Elizabeth Business with Ms Disibio and Ms Fazzalari prior to Café 24/7’s liquidation, with a view of furthering the interests of the Original St Peters Businesses, to the detriment of Narda (Confidentiality Concerns); and

(c) the liquidation of Café 24/7 may have been used by Mr Disibio or Mr Fazzalari as a tool to continue to trade at the Elizabeth Site, through St Peters Elizabeth (which was controlled by their wives), without having to pay the creditors of Café 24/7, and with the benefit of certain assets and former employees of Café 24/7 (Illegal Phoenix Concerns).

20 Narda has provided evidence that, on 9 May 2025, ASIC granted it eligible applicant status for the purposes of ss 596A and 596B of the Corporations Act.

Relevant legal principles

The nature of the review

21 The Examinees’ interlocutory application to set aside the Examination Orders and Examination Summonses did not explicitly identify the source of the Court’s power to make the orders which the Examinees sought. Rule 11.5 of the Federal Court (Corporations) Rules 2000 (Cth) provides that a person who is served with an examination summons may apply to the Court for an order discharging the summons. A person served with an examination summons may make an application under r 11.5 in relation to an examination summons issued by the Court or by a registrar. In this case, the Examination Orders were made by a registrar of the Court, exercising a power delegated to him in accordance with s 35A(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Accordingly, the Court also has the power to review those orders pursuant to s 35A(6) of the FCA Act.

22 The review provided for in s 35A(6) of the FCA Act is a de novo review: Mazukov v University of Tasmania [2004] FCAFC 159 at [24]; Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34 at 169-70 [1]-[5]. Insofar as the power exercised by the registrar was discretionary, the exercise of discretion should be reviewed on the basis that the Court is to exercise the discretion itself afresh, without the need for the Examinees to establish that the registrar’s decision was affected by error: Crane v Gidley; Re Steel City Formwork Pty Ltd (in liq) [2026] FCA 770 at [53]-[54]. I proceed on the basis that the present interlocutory application should be treated as a de novo review of the registrar’s decision and that, accordingly, I should set aside the Examination Orders and the Examination Summonses if, exercising the powers in ss 596A, 596B and 596D of the Corporations Act for myself, I would decline to make the Examination Orders. Likewise, I should vary the Examination Orders if, exercising those powers for myself, I consider that documents required to be produced by the Examinees should be confined to categories narrower than the classes of documents specified in the Examination Orders.

Relevant provisions of the Corporations Act

23 The examination summonses issued to each of Mr Disibio and Mr Fazzalari were issued pursuant to s 596A of the Corporations Act, which provides as follows:

596A Mandatory examination

The Court is to summon a person for examination about a corporation’s examinable affairs if:

(a)    an eligible applicant applies for the summons; and

(b)    the Court is satisfied that the person is an officer or provisional liquidator of the corporation or was such an officer or provisional liquidator during or after the 2 years ending:

(i)    if the corporation is under administration—on the section 513C day in relation to the administration; or

(ii)    if the corporation has executed a deed of company arrangement that has not yet terminated—on the section 513C day in relation to the administration that ended when the deed was executed; or

(iii)    if the corporation is under restructuring—on the section 513CA day in relation to the restructuring; or

(iv)    if the corporation has made a restructuring plan that has not yet terminated—on the section 513CA day in relation to the restructuring that ended when the plan was made; or

(v)    if the corporation is being, or has been, wound up—when the winding up began; or

(vi)    otherwise—when the application is made.

(Note omitted.)

24 Ms Disibio and Ms Fazzalari were issued examinations summonses pursuant to s 596B of the Corporations Act, which provides as follows:

596B Discretionary examination

(1)    The Court may summon a person for examination about a corporation’s examinable affairs if:

(a)    an eligible applicant applies for the summons; and

(b)    the Court is satisfied that the person:

(i)    has taken or been concerned in examinable affairs of the corporation and has been, or may have been, guilty of misconduct in relation to the corporation; or

(ii)    may be able to give information about examinable affairs of the corporation.

(2)    This section has effect subject to section 596A.

25 The “examinable affairs” of a corporation includes the “business affairs” of entities and persons connected with the corporation: Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5 at 487-8 [14] (Kiefel, Keane, Nettle and Gordon JJ); Corporations Act, ss 9, 53. The “affairs of a body corporate” are “themselves extremely broad, including ‘the promotion, formation, membership, control, business, trading, transactions and dealings’ of the company”, and include “any act or thing done … by or on behalf of the body, or to or in relation to the body or its business or property, at a time when … the body is being wound up”: Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (in liq) (2022) 275 CLR 508; [2022] HCA 3 (Walton) at 562 [150] (Edelman and Steward JJ); Kimberley Diamonds Ltd v Arnautovic (2017) 252 FCR 244; [2017] FCAFC 91 at 248 [12]; Corporations Act, s 53.

26 Section 596A of the Corporations Act imposes a duty on the Court to make an order summoning a person for examination, providing (a) the applicant is an “eligible applicant”; (b) the person to be examined is (or was during the relevant period) an officer or provisional liquidator of the corporation; (c) the summons is about the “examinable affairs” of the corporation; (d) the form of the summons complies with s 596D of the Corporations Act; and (e) the company is subject to a form of external administration for the purposes of Ch 5 of the Corporations Act: see Walton at 562-3 [152], 565-6 [158]-[159] (Edelman and Steward JJ). The Court can refuse to make an order under either s 596A or s 596B “if it is satisfied in advance that summoning a person on the application of an eligible applicant would amount to an abuse of the process of compulsory examination for which the Part provides”, and can stay such an order “if it is later satisfied that subjecting or continuing to subject the person to the process of compulsory examination amounts to an abuse of that process”: Walton at 541-2 [92] (Gageler J). I return below to the principles relating to abuse of process in this context.

27 On the other hand, s 596B confers a discretion which arises, relevantly, “if the Court is satisfied that the person … ‘may be able to give information about examinable affairs of the corporation’”: see Walton at 541 [91] (Gageler J).

28 It follows that, on a review of a decision of a registrar made pursuant to s 596A of the Corporations Act, the decision should be set aside only if the Court concludes that the identified conditions for the issue of a summons under s 596A are not met, or if the Court is satisfied that the issue of the summons is an abuse of process, or, perhaps, if the registrar’s decision was affected by a material non-disclosure. On review of a registrar’s decision made pursuant to s 596B, requiring a person who is not an officer or former officer of the relevant corporation to attend for examination, the Court should determine whether the precondition for the making of the order is satisfied and, if so, should also exercise the discretion for itself and determine whether the summons should be issued.

29 Where an examination summons is issued to a person pursuant to ss 596A or 596B of the Corporations Act, s 596D identifies what the summons is to require the person to whom it is addressed to do. It provides:

596D Content of summons

(1)    A summons to a person under section 596A or 596B is to require the person to attend before the Court:

(a)    at a specified place and at a specified time on a specified day, being a place, time and day that are reasonable in the circumstances; and

(b)    to be examined on oath or affirmation about the corporation’s examinable affairs.

(2)    A summons to a person under section 596A or 596B may require the person to produce at the examination specified books that:

(a)    are in the person’s possession; and

(b)    relate to the corporation or to any of its examinable affairs.

(3)    A summons under section 596A is to require under subsection (2) of this section the production of such of the books requested in the application for the summons as the summons may so require.

30 The language of s 596D(2) and (3) refers to what a summons “may” do. As I understand s 596D(3), its effect is that, where a summons is issued to an officer or former officer of a corporation under s 596A, the summons must require production of whatever books are requested in the application for the summons, providing only that (a) they are in the possession of the person to whom the summons is addressed, and (b) they relate to the corporation or to any of its examinable affairs.

31 On the other hand, in relation to a summons issued under s 596B of the Corporations Act, the Court has a discretion to decide which specified books the person to whom the summons is addressed should be required to produce in connection with the examination. The Court may order that the person produce specified books if (a) they are in the person’s possession, and (b) they relate to the corporation or to any of its examinable affairs, but the Court may, in the exercise of its discretion, decline to require the person to produce books at all, or may require the person to produce such specified books as the Court considers appropriate.

32 It follows from the above that, on a review of a registrar’s decision to make an order pursuant to s 596D(2) in relation to a person to whom a summons under s 596A is issued, the Court should only set aside the registrar’s order if it required the production of documents which were not in the person’s possession or which did not relate to the relevant corporation’s examinable affairs, or if the Court is satisfied that the application for the order was an abuse of process. In relation to an order pursuant to s 596D(2), when the order relates to a summons issued under s 596B, the Court should decide for itself how the discretion should be exercised, and should set aside or vary the order if it considers that the discretion should be exercised in a manner that is different from what was done by the registrar.

Abuse of process

33 The Examinees submit that the Examination Orders and Examination Summonses should be set aside on the basis that Narda’s originating process was an abuse of process. In Walton, Gageler J considered (at 543 [97]) that “[i]nvocation of a process of a court as a step in the pursuit of an ultimate purpose amounts of itself to an abuse of process only if pursuit of the ultimate purpose is ‘foreign to the nature of the process in question’”. An example of an abuse of process is an eligible person “using an examination solely for the purpose of obtaining a forensic advantage not available from ordinary pre-trial procedures, such as discovery or inspection”: Walton at 548 [111] (Gageler J), quoting Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 519 (Gleeson CJ).

34 In the same case, in relation to s 596A of the Corporations Act, Edelman and Steward JJ relevantly stated (at 570 [170]):

The purpose of s 596A, at a higher level of generality than its terms, and reflecting the underlying mischief to which the provision is directed, is therefore to address, by examinations of present or former corporate officers or provisional liquidators, the administration or enforcement of the law concerning the corporation and its officers in public dealings. A summons for examination will not be an abuse of process unless the predominant purpose of the examination would contradict or stultify – in some way – this public interest in the external administration of a company.

35 In relation to s 596B of the Corporations Act, Edelman and Steward JJ noted (at 576 [188]) that “[t]he approach which does not confine the statutory purpose to the interests of the corporation, its creditors, or its contributories has also been taken in relation to s 596B”, and referred with apparent approval to the judgment of Hayne J in New Zealand Steel (Australia) Pty Ltd v Burton (1994) 13 ACSR 610. In Re Bill Express Ltd (in liq) (2010) 238 FLR 329; [2010] VSC 101 (Bill Express), Davies J observed (at 340-1 [28]):

… The very point of s 596B is that an eligible applicant is entitled to an order without showing that an examinee will be able to provide information at the examination. All that is required for an order are facts to support the conclusion that the examinee may be able to provide information. It is a proper use of the examination process for an examiner to explore what information the examinee does have.

36 The exercise of the powers conferred by ss 596A and 596B is not conditioned upon an examination being for the benefit of the company, its creditors, or its contributories: Walton at 550-1 [115]-[118], 552 [123] (Gageler J), 566 [160], 569-70 [169] (Edelman and Steward JJ). An ultimate purpose of “enabling evidence and information to be obtained to support the bringing of proceedings against officers and other persons in connection with the examinable affairs of a corporation” is not illegitimate: at 553 [126] (Gageler J). The power of ASIC to authorise other persons as an “eligible applicant” who may apply for a summons exists for reasons which include “to enable a creditor or contributory to advance claims they may or may not have against a company in external administration or its current or former officers”: Walton at 571 [173] (Edelman and Steward JJ). “Legitimate purposes under s 596A therefore include the enforcement of the Corporations Act, the promotion of compliance with that Act, and the protection of shareholders or creditors from corporate misconduct”: Walton at 571 [175] (Edelman and Steward JJ).

37 Finally, I note that, in Walton, Edelman and Steward JJ said (at 578 [191]):

It should also be emphasised that setting aside a summons for an improper purpose would be, in the usual case, inapt where the threat of abuse is capable of being addressed by the court in other ways. In the case of a summons issued pursuant to s 596A, the integrity of any examination should be capable of protection by the court through the making of appropriate directions and by the controlling of what questions might be asked. It would only be when these alternatives were unable adequately to address the threat of an abuse of process that a more “draconian” remedy might be appropriate, such as the setting aside of the summons. Even then, the setting aside of a summons on the grounds that it is an abuse of process should be a measure of “last resort”; such a remedy must be reserved for only the most exceptional or extreme cases.

(Footnotes omitted.)

38 There is a risk that the direct application of certain statements made in decisions which pre-date Walton may lead to a conclusion that an application to issue examination summonses is an abuse of process in circumstances where the application of what was said by the majority in Walton would not support that conclusion: see, eg, Evans v Wainter Pty Ltd (2005) 145 FCR 176; [2005] FCAFC 114 at 216-17 [252]; Re Excel Finance Corporation Ltd; Worthley v England (1994) 52 FCR 69 at 91. For that reason, the safer approach is to apply what was said by the majority in Walton.

Production of documents relevant to an examination under s 596B of the Corporations Act

39 In Bill Express, Davies J considered the principles that apply in connection with the power to require a person to whom an examination summons under s 596B of the Corporations Act is issued to produce documents. In relation to the operation of s 596D(2), her Honour said (at 337 [21]):

The terms of the provision do not, in language, confine the ambit of production other than by reference to the criterion that the documents sought to be produced relate “to any of [the company’s] examinable affairs”. The language is not proscriptive. There is no requirement to confine the documents which the person must produce at the examination to documents which relate only to the particular matters on which the application for the issue of the summons was based. That is not surprising. The examination provides the means by which the liquidator (or other eligible applicant) gains access to information and books that may assist him or her in their functions. The constraint on the power is the requirement that person, in seeking the production of the documents, does so for a proper purpose.

40 Justice Davies considered an argument which her Honour described (at 338 [24]) in the following terms:

It was argued on behalf of the applicants that the scope of the documents that an examinee can be compelled under s 596D(2) to produce at an examination is limited by the scope of the examination: that is to say, to the particular matters concerning the corporation’s examinable affairs that will be the subject of the examination. It was submitted that the s 596D(2) power cannot be used to require the production of documents that relate to the corporation’s “examinable affairs” at large and that an order for production of documents that compelled the production of documents that were not relevant to the subject matter of the examination was oppressive and “beyond power”.

41 Her Honour rejected this argument. Referring to Re BPTC Ltd (in liq) (No 5) (1993) 10 ACSR 756 (BPTC), her Honour accepted (at 339 [26]) that “the scope and exercise of the power to order the production of documents for the purposes of an examination depends on the scope and exercise of the power to order an examination”. However, her Honour went on to say (at 339-40 [26]):

The legal limits of the power to make an order under s 596D are expressly defined in s 596D(2) in the requirement that the exercise of power be for the purposes of the examination. … Where, as is the case here, no limitation is placed on the subject matter of the examination, other than that it must be about a corporation’s examinable affairs, an order for production in terms that the examinee must produce all books and records relating to the affairs of a corporation is within the power of the Court. …

(Footnotes omitted.)

42 The Examinees placed reliance on the judgment of Bryson J in BPTC. As I understood their position, they contended that the Examination Orders should not require the Examinees to produce documents at the examination which were not directly referable to the particular concerns identified by Narda in order to explain the reasons why it wished to conduct examinations. However, consistently with what Davies J said in Bill Express, while the production of documents is ancillary to the examination, the particular concerns identified by Narda do not define the possible limit of the examinations.

43 I accept, however, that the exercise of the discretion conferred by s 596D(2) of the Corporations Act, in relation to persons who are to be examined pursuant to a summons issued under s 596B, should be exercised bearing in mind the concerns which have given rise to the application for the issue of the summons, and orders requiring the production of documents should be proportionate to the purpose of investigating those concerns.

Issues arising on the interlocutory application

44 The Examinees contend that the Examination Orders and the Examination Summonses should be set aside on the grounds that:

(a) the Examination Orders were obtained at an ex parte hearing at which Narda failed to comply with its obligation of full and frank disclosure;

(b) Narda’s originating process is an abuse of process because Narda is pursuing the examination of the Examinees for an improper purpose, namely:

(i) to obtain a forensic advantage in the Supreme Court Proceeding;

(ii) to obtain commercially sensitive financial, operational and intellectual property information from a competitor; and/or

(iii) some other, unidentified, extraneous purpose;

(c) improper purpose is to be inferred from the fact that Narda continues to seek the production of documents from the examination of the Examinees notwithstanding that it has obtained the appointment of Mr Trim as liquidator; and

(d) the scope of the documents which the Examination Orders require the Examinees to produce is oppressive.

45 The issues are interrelated. For example, the Examinees contend that the breadth of the Examination Orders, as well as being oppressive, is a consideration that tends to demonstrate that they are being used by Narda for a collateral purpose.

46 In addition, the Examinees contend that Narda should be required to disclose the Confidential Affidavit on which it relied for the purpose of the originating process which led to the making of the Examination Orders and the issue of the Examination Summonses.

Disclosure of the confidential affidavit and alleged non-disclosure of material facts in the evidence relied on to support the application for the Examination Orders

47 The discretion of the Court to order disclosure of a confidential affidavit filed in support of an application for orders under s 596B of the Corporations Act is conferred by s 596C(2). It has been said that the discretion should ordinarily be exercised where the justice of the case requires it: Simionato v Macks (1996) 19 ACSR 34 (Simionato) at 63. A person applying to set aside an examination summons must demonstrate that they have an arguable case, without recourse to the confidential affidavit, and that the material sought will be, or ought to be, relevant to that arguable case: Simionato at 63; Fetzer v Irving as Liquidator of Mawson KLM Holdings Pty Ltd (in liq) (2005) 91 SASR 54; [2005] SASC 53 at 59 [27]-[28]. Once the Court determines whether an arguable case is established, considering material other than the Confidential Affidavit, the Court must also then inspect the supporting affidavit and determine whether it is in the interests of justice to permit the Examinees to access it: see Secatore; Re Last Lap Pty Ltd (in liq) (2020) 144 ACSR 648; [2020] FCA 627 (Secatore) at 665-6 [75].

48 The Examinees state that they are concerned that Narda may not have made full disclosure of certain matters in the Confidential Affidavit, which could have been raised in opposition to the making of the Examination Orders. The relevant matters which the Examinees identify as potentially not having been fully disclosed are:

(a) the existence of the Pre-Action Claim and the nature of the claims in the foreshadowed proceeding to which it relates;

(b) the existence of, and the nature of the claims in, the Supreme Court Proceeding; and

(c) the status of the liquidation and Narda’s dealings with the former liquidator, Mr McPherson;

(d) the fact that Narda is a competitor of the Examinees and their related entities; and

(e) that the Examination Orders were (as the Examinees submit) broader than could reasonably be justified by the purposes for which Narda claims to be seeking them.

49 I understood the parties to agree that I should have regard to the content of the Confidential Affidavit, for the purposes of determining whether the Confidential Affidavit should be disclosed to the Examinees and whether there was a material non-disclosure in connection with Narda’s originating process which led to the making of the Examination Orders.

50 The Examinees submit that the Confidential Affidavit should be disclosed to them if, after consideration of its contents, I am satisfied that there is at least an arguable case that there was a material non-disclosure in connection with the originating process and the ex parte hearing which led to the making of the Examination Orders.

51 I am not satisfied that the Examinees have established an arguable case of material non-disclosure without reference to the Confidential Affidavit. The basis for the inference that there was material non-disclosure of the matters identified is essentially speculative and based on the incredulity of the Examinees that the registrar would have made the Examination Orders if all relevant information had been disclosed.

52 In any case, I have reviewed the content of the Confidential Affidavit. It includes a clear statement to the effect that Narda anticipates that it will commence a substantive proceeding against Mr Disibio, Ms Disibio, Mr Fazzalari and Ms Fazzalari in relation to identified alleged breaches of franchise agreements. The Confidential Affidavit annexes a copy of the Pre-Action Claim in full, albeit with the terms of an offer made by Narda redacted, and states that the dispute the subject of the Pre-Action Claim has not been resolved. It also includes evidence regarding the issue of letters of demand to Mr Fazzalari and Mr Field which were the precursor to the Supreme Court Proceeding, describes the Supreme Court Proceeding, and annexes a copy of the pleadings filed in the Supreme Court Proceeding.

53 The Confidential Affidavit identifies the nature of the business operated by Narda as a bakery business which operates the Café De Vili’s franchise system and supplies bakery products both on a wholesale basis to businesses in Australia and overseas, and on a retail basis to consumers at events and functions in South Australia and elsewhere in Australia. It also identifies the wider business of Vili’s, which supplies bakery products on a retail basis to consumers through cafés trading under the name “Café De Vili’s”, which are open 24 hours each day. The Confidential Affidavit includes evidence to the effect that the Original St Peters Businesses and St Peters Elizabeth are similar to the Café De Vili’s businesses. The Confidential Affidavit refers to clauses in the franchise agreement for Vili’s Elizabeth which seek to restrain Café 24/7, and persons with controlling interests therein, from engaging in, having a financial interest in, or rendering services to, businesses which are competitive with the business of Narda. An evident premise of Narda’s originating process seeking the issue of examination summonses was that the Original St Peters Businesses and St Peters Elizabeth are in competition with the business of Narda. In my view the Examinees have not established that it is reasonably arguable that Narda failed to disclose that it was in competition with businesses operated by the Examinees.

54 In relation to dealings with Mr McPherson, the Confidential Affidavit refers to Mr McPherson’s appointment as liquidator, includes the salient terms of a letter from Mr McPherson sent to creditors of Café 24/7, and annexes relevant documents including the proof of debt lodged by Narda in the liquidation of Café 24/7. At the time when Narda’s originating process and the Confidential Affidavit were filed, Mr McPherson’s appointment as liquidator of Café 24/7 was ongoing. The Examinees have not identified particular dealings between Narda and Mr McPherson that they contend Narda ought to have disclosed in connection with its originating process under ss 596A and 596B of the Corporations Act. The Examinees have not established a reasonable basis to argue that there was material non-disclosure of any relevant dealing between Narda and Mr McPherson.

55 The Examinees further submit that the scope of the documents which the Examination Orders require the Examinees to produce is too broad in various respects. The Examinees submit that, if that is so, then, at the ex parte hearing, Narda was required to inform the Court that the Examination Orders were broader than could be justified by the purposes for which Narda claimed to be seeking them. In my view, it is not reasonable to conclude that Narda failed to comply with its duty of disclosure in this respect. The orders made by the registrar were narrower than those originally sought by Narda in its originating process. Before hearing from Narda ex parte, the registrar raised concerns about the breadth of the orders originally sought. In response, Narda narrowed the classes of documents sought and identified connections between the concerns and the orders which it sought. It was apparent to the registrar that the breadth of orders sought (including whether they might have been oppressive or an abuse of process) was a central issue for him to determine. In that context, Narda did not fail in its duty of disclosure.

56 Having considered the Confidential Affidavit and each of the concerns identified by the Examinees, I am satisfied that it is not sufficiently arguable that there was material non-disclosure by Narda with respect to any of those concerns to warrant the making of an order that the Confidential Affidavit be disclosed to the Examinees. I am not satisfied that the disclosure of the content of the Confidential Affidavit is relevant to an arguable case for the setting aside of the Examination Summonses and the Examination Orders. Nor am I satisfied that it is in the interests of justice to require the disclosure of the Confidential Affidavit to the Examinees: Secatore at 665-6 [75]. I therefore decline to order that the Confidential Affidavit be disclosed to the Examinees.

57 It also follows from what I have said above that the Examination Orders and the Examination Summonses should not be set aside on the ground of material non-disclosure by Narda on the ex parte application before the registrar.

Abuse of process

Introduction

58 The Examinees submit that the documents sought under the Examination Orders extend beyond any of the concerns raised in the Milisits Affidavit as justifying their production. The Examinees contend that this should lead me to conclude that the true purpose of Narda’s originating process seeking orders under ss 596A, 596B and 596D of the Corporations Act was “a purpose that is not disclosed by the evidence”. The Examinees submit that a compelling inference arises that Narda is pursuing the examinations of the Examinees for a purpose foreign to the purposes of ss 596A and 596B, and, further, that the Examination Orders are in any event oppressive in scope insofar as they require the Examinees to produce documents.

59 I am not prepared to infer from the breadth of the Examination Orders that they were sought for an improper purpose or that they constitute an abuse of process. The purpose of examinations under ss 596A and 596B is to enable an eligible applicant to investigate the examinable affairs of a corporation in external administration, and the fact that Narda has sought production of documents which fall within the definition of the “examinable affairs” of Café 24/7 does not lead me to conclude that the examination is being pursued for an improper purpose.

60 In addition to the scope of the orders, the Examinees submit that the Examination Orders should be set aside for the following reasons:

(a) Narda seeks to gain a forensic advantage in relation to other litigation it is engaged in, involving the Examinees;

(b) Narda is a direct commercial competitor of businesses operated by the Examinees, and will gain commercially sensitive financial information if documents are produced by the Examinees; and

(c) Mr Trim was appointed to act, in substance, as a special purpose liquidator, to consider and pursue the same kinds of concerns that are said to have motivated Narda’s originating process which led to the making of the Examination Orders.

61 The Court must therefore determine whether the Transfer Concerns, the Confidentiality Concerns and the Illegal Phoenix Concerns are legitimate and genuine, or whether the Examination Orders are predominantly being used for some other improper purpose.

The concerns identified by Narda

62 I am satisfied that Narda genuinely holds the Transfer Concerns, the Confidentiality Concerns, and the Illegal Phoenix Concerns. The evidence before the Court provides a coherent basis for Narda to hold those concerns. Relevant matters include the timing of the incorporation of the Original St Peters Businesses; the relationships between the former directors of Café 24/7 and their wives; the fact that St Peters Elizabeth commenced operation from the premises from which Café 24/7 formerly operated; and the existence of substantial unpaid creditor claims.

63 These matters are directly connected with the examinable affairs of Café 24/7, as that expression is broadly defined in s 9 (including when read together with s 53) of the Corporations Act. As the Examinees fairly acknowledged in the course of oral argument, “one doesn’t need to make out a proper case; one needs to demonstrate that there may be something worthy of investigation”.

Appointment of new liquidator by Narda and alleged duplication of processes

64 On 19 August 2025, the former liquidator of Café 24/7, Mr McPherson, made a declaration that the liquidation of Café 24/7 was finalised and ceased. On 21 August 2025, Mr McPherson lodged an end of administration return with ASIC. The consequence was that, in accordance with s 509(1) of the Corporations Act, ASIC came under an obligation to deregister Café 24/7 on 22 November 2025.

65 On 13 November 2025, in action SAD 240 of 2025, the Court (Colvin J) made an order that Mr Trim be appointed as liquidator of Café 24/7 and an order, pursuant to s 509(2) of the Corporations Act, that ASIC deregister Café 24/7 on 13 November 2030: Narda Holdings Pty Ltd v Cafe 24/7 Pty Ltd (in liq) [2025] FCA 1338. The latter order had the effect of extending the time otherwise fixed by s 509(1) of the Corporations Act.

66 Narda submits that, if the Examination Orders and Examination Summonses are not set aside, they will proceed with the examinations and enter into a funding agreement with Mr Trim, as liquidator, to enable him to have sufficient funds to give consideration to any claims that Café 24/7 may have which may arise from the examination process.

67 The Examinees submit that Mr Trim has been appointed for the specific purpose of considering and pursuing the claims of Narda. The Examinees contend that Mr Trim will seek production of documents from the Examinees and that there will “inevitably be material duplication, and unwarranted oppression”. The Examinees submit that “the fact that Narda presses to conduct the examinations itself, rather than to have Mr Trim do so as part of his limited role, supports an inference that Narda’s true objectives from the outset were to benefit itself in its litigation or commercial endeavours”.

68 I do not accept this submission. Narda’s application for the appointment of Mr Trim as liquidator was made after Narda, as an eligible applicant authorised by ASIC, had already applied to the Court for the making of examination orders. Indeed, the necessity for Narda to apply for Mr Trim to be appointed as liquidator arose because the former liquidator, Mr McPherson, had declared that the liquidation of Café 24/7 was finalised and ceased, after Narda had, on 6 August 2025, filed an originating process seeking orders under ss 596A, 596B and 596D of the Corporations Act. As Colvin J noted in his Honour’s reasons for the orders made on 13 November 2025 (at [14]), one of the reasons for making those orders was that, if they were not made, the Examination Orders would be frustrated. That is, the orders appointing Mr Trim as liquidator were made in order to enable the liquidation to continue, and so that Narda could pursue the examinations it had already sought to commence through the filing of its originating process, in the event that the Examination Orders and the Examination Summonses were not set aside.

69 This sequence of events does not suggest that the continuing pursuit of examinations by Narda is for an improper purpose; let alone that Narda’s true objectives “from the outset” were improper.

70 Narda submits that Mr Trim’s present role as liquidator is limited to preserving the status quo, and, in particular, to enable Narda itself to pursue the examination process (in the event that the Examination Orders and the Examination Summonses are not set aside). This submission should be accepted.

71 In action SAD 240 of 2025, Narda sought an order that Mr Trim be appointed as a special purpose liquidator for the limited purposes of “giv[ing] consideration to claims available to Cafe 24/7 or its liquidator arising from the examinations” of the Examinees in the present proceeding, and “commenc[ing] and prosecut[ing] any legal proceedings in the name of Cafe 24/7 or as liquidator of Cafe 24/7 arising from the examinations”. Although Colvin J made an order appointing Mr Trim as liquidator, he did not appoint Mr Trim for the special purpose sought by Narda. In his reasons for making the orders dated 13 November 2025, Colvin J pointed out (at [16]) that there was uncertainty as to whether, in the absence of an order appointing a new liquidator, Mr McPherson would remain in that office. His Honour considered that an order should be made to provide clarity, and proceeded to say (at [17]):

At the hearing it was confirmed that Mr Trim consented to being appointed as liquidator. On that basis, I made an order that, until further order, Mr Trim be appointed as liquidator. My intention in expressing the order in those terms was for the liquidator to confine any exercise of his powers as liquidator to what was necessary to preserve the status quo of Cafe 24/7 pending the outcome of the determination of the substantive application which seeks orders to carry into effect the purpose for which the extension was sought. At that time, the Court will be in a position to consider the appropriate arrangements for the ongoing administration of Cafe 24/7 in circumstances where its deregistration has been deferred for the purpose of advancing matters the subject of the application for appointment of a special purpose liquidator. In the circumstances, having regard to the fact that the only justification for continuing the conduct of the affairs of Cafe 24/7 was the conduct of the examinations and following through on the outcome of those examinations, I would expect that advice would be sought by the liquidator from the Court before undertaking any other steps in the administration of the affairs of Cafe 24/7.

(Emphasis added.)

72 It is clear that the appointment of Mr Trim as liquidator was not intended to enable him, at this stage, to pursue investigations or examinations of the kind which Narda is seeking to pursue. On the contrary, the appointment of Mr Trim was made so that the examinations in which Narda wishes to engage, should the Court decide that they are not an abuse of process, would not be frustrated. The question of whether Mr Trim should exercise the functions of a special purpose liquidator in the future remains to be determined in light of the outcome of the examinations which are being pursued by Narda.

73 It is not possible to predict what investigations Mr Trim might pursue in the future as a consequence of information obtained as a result of the examinations of the Examinees. No doubt any liquidator would be mindful of the undesirability of requiring the Examinees to duplicate the production of documents which had already been required. I am not satisfied that the mere possibility that Mr Trim might seek to exercise powers in a way that could duplicate processes already engaged in by Narda supports the view that Narda’s present pursuit of the examinations is an abuse of process. In any event, the Court will be able to maintain control over any examination process that Mr Trim may wish to engage in at a future time.

74 The appointment of Mr Trim does not demonstrate or suggest that Narda’s originating process, or its defence of the Examination Orders, is an abuse of process.

Existing and foreshadowed litigation by Narda against the Examinees and related entities

75 The Examinees submit that the Examination Orders and the Examination Summonses should be set aside as Narda is currently engaged in litigation with one of the Examinees and has foreshadowed other litigation against the Examinees and other entities within the scope of the Examination Orders. They submit that Narda will obtain information relevant to that proceeding through the Examination Orders, if they are not set aside. They submit that it should be inferred that the predominant purpose of pursuing the examination of the Examinees and the production of documents from them is to gain a forensic advantage in the actual or foreshadowed litigation.

76 Just because there is other litigation to which an applicant for an order for examination and the proposed examinee are parties, and the examination will touch on the matters the subject of that proceeding, that does not mean that the examination is an abuse of process: New Zealand Steel (Australia) Pty Ltd v Burton (1994) 13 ACSR 610 at 614; see also Re PIC Lindfield 19 Pty Ltd (in liq) (2022) 161 ACSR 539; [2022] NSWSC 271 at 561 [95].

77 The Supreme Court Proceeding is brought by Narda against Mr Fazzalari and Mr Field. It concerns causes of action in debt and breach of contract arising out of a franchise agreement between Narda and Galaxy Blue.

78 The Pre-Action Claim issued by Narda outlined several concerns relating to the Examinees and their business activities, including allegations of breaches of restraints and use of confidential information in respect of franchise agreements. Many of the allegations relate to matters which can be seen to be connected with the concerns which Narda has identified as motivating its originating process which led to the making of the Examination Orders. Following the response provided to the Pre-Action Claim on 27 September 2024, the parties to the Pre-Action Claim have not engaged in further responses and the dispute mechanisms under the respective franchise agreements have not been invoked. Café 24/7 was placed into voluntary liquidation 12 days after the issuance of the response to the Pre-Action Claim. Thereafter, the effect of s 500(2) of the Corporations Act was that a proceeding could not be commenced against Café 24/7 without leave of the Court. About one month after the issue of the Pre-Action Claim, SPB Elizabeth (controlled by Ms Disibio and Ms Fazzalari) started trading the St Peters Elizabeth business at the Elizabeth Site, the former premises from which Café 24/7 had operated.

79 The Examinees contend that, by virtue of the Examination Orders, Narda will obtain material relevant to the current and foreshadowed proceedings. The Examinees claim that this is a form of “super discovery” that seeks to avoid the need to demonstrate direct relevance in inter partes proceedings. However, I am not satisfied that a predominant purpose of seeking the Examination Orders is to obtain information relevant to the Supreme Court Proceeding or to circumvent the limitations on discovery. I am also not satisfied that seeking information which may be relevant to the Pre-Action Claim constitutes an improper purpose.

80 The pleadings in the Supreme Court Proceeding make no reference to Café 24/7, or the franchise agreement between Narda and Café 24/7, and the proceeding does not relate to the concerns which Narda has identified as motivating its originating process which led to Examination Orders. Nor do the Examination Orders make reference to Galaxy Blue or the franchise agreement or businesses that are the subject of the Supreme Court Proceeding. To the extent that Narda might gain information relevant to the Supreme Court Proceeding from the examinations or the production of documents, I am satisfied that that would be an incidental consequence and is not the predominant purpose of the examinations.

81 To the extent that the examinations may assist in investigating or pursuing a claim or claims against Café 24/7 or its former officers, that is a legitimate use of the examination power: Walton at 577-8 [190] (Edelman and Steward JJ). Moreover, the examinations also serve the purpose of obtaining evidence that may enable Mr Trim to consider whether he, as liquidator of Café 24/7, may have claims against its former directors (for example, under s 588FF of the Corporations Act) which may benefit its creditors generally. There is nothing in the evidence to suggest that Narda is seeking to engage in the examinations for the predominant purpose of obtaining a form of “super discovery” of documents or information for the purposes of circumventing the limits on discovery and other forms of compulsory production of documents or information which are available in inter partes proceedings, or for the purpose of conducting a “dress rehearsal” for the cross-examination of witnesses in inter partes proceedings or to destroy the credit of a witness to be called in pending or intended litigation: cf Lombe; Re Babcock and Brown Ltd (in liq) [2022] FCA 957 at [46]-[47].

Narda as a direct competitor of the Examinees

82 The Examinees submit that the effect of the Examination Orders is that Narda will obtain detailed commercially sensitive information and intellectual property from its direct competitors over a period from 1 July 2022 to early 2025. It is true that that may be a consequence of the Examination Orders, but I am not satisfied that the obtaining of commercially sensitive information because the Examinees are competitors of Narda is or was a predominant purpose of Narda in pursuing the examinations of the Examinees. I would not set aside the Examination Orders and the Examination Summonses on this basis.

83 Nevertheless, I accept that the fact that the Examinees are in competition with Narda is a consideration that bears on whether the production of documents required by the Examination Orders is oppressive, and whether the Examination Orders should be narrowed to avoid oppression to the Examinees or their related entities.

84 I am conscious that the submissions advanced by the Examinees are interrelated, in the sense that they contend that the breadth of the Examination Orders supports the conclusion that Narda is pursuing the examinations for one or more of the improper purposes identified. Although I have dealt with these matters sequentially, I have considered what inference should be drawn from the breadth of the Examination Orders in the context of the existing and foreshadowed litigation and the competitive relationship between Narda and the Examinees. The breadth of the categories indicates that Narda is attempting to cast a broad net in the hope of obtaining information relevant to its concerns, and to understand the examinable affairs of Café 24/7. I have concluded that Narda’s predominant purpose in pursuing the examinations of the Examinees is not improper.

85 The Examinees submit that it is “necessary as a first step, for the Court to be satisfied that the purposes for which ASIC was satisfied to grant eligible applicant status to Narda are concordant with the purposes stated in the evidence filed [by Narda]”. I do not think this is correct. The Court is not reviewing ASIC’s decision, and ASIC’s reasons for authorising Narda as an eligible applicant to seek orders under ss 596A, 596B and 596D are not, and need not be, disclosed. I am satisfied that Narda’s predominant purposes in pursuing the examinations is consistent with the purpose of “enabl[ing] a creditor … to advance claims they may or may not have against a company in external administration or its current or former officers”: cf Walton at 571 [173] (Edelman and Steward JJ).

Examination of Ms Disibio and Ms Fazzalari

86 As noted above, the power under s 596B of the Corporations Act, to issue an examination summons to a person who is not a former officer of the corporation, is discretionary. Some of the general considerations relevant to the exercise of the discretion were identified by Lander J in Southern Cross Petroleum Sales (SA) Pty Ltd (in liq) v Hirsch (1998) 70 SASR 527 at 536-7. I did not understand the Examinees to contend that, in the event that Narda’s originating process leading to the Examination Orders was not found to be an abuse of process, or to have been obtained as a result of material non-disclosure by Narda, the Court should exercise the discretion by declining to issue examination summonses to Ms Disibio and Ms Fazzalari.

87 In any event, I am satisfied that each of Ms Disibio and Ms Fazzalari meets the description in s 596B of a person who “may be able to give information about examinable affairs of the corporation”. In light of their respective relationships with Mr Disibio and Mr Fazzalari, their involvement as directors of the Original St Peters Businesses and St Peters Elizabeth, and the circumstances in which St Peters Elizabeth came to operate its business from the premises formerly occupied by Café 24/7, I am satisfied that it is appropriate for the Court to exercise the discretion conferred by s 596B by issuing examination summonses to both Ms Disibio and Ms Fazzalari. I would not make orders confining the examination to particular issues or topics; that is, the examinations may extend to matters within the examinable affairs of Café 24/7, subject to the control exercised by the Court during the examinations.

Breadth of production required by Examination Orders

Overview

88 The Examinees argue that the Examination Orders are oppressive insofar as they require the Examinees to produce documents, and that the Milisits Affidavit does not provide an evidentiary foundation to justify the breadth of the Examination Orders. The Examinees also submit that some of the categories of documents which the Examination Orders require them to produce were outside the definition of the “examinable affairs” of Café 24/7.

89 The Examination Orders, as made by the registrar, require each of Mr Disibio and Mr Fazzalari to produce documents in 19 categories, identified in Schedule 2 to the examination summonses addressed to them. They require each of Ms Disibio and Ms Fazzalari to produce documents in ten categories, identified in Schedule 2 to the examination summonses addressed to them. Speaking generally, the categories of documents which the Examination Orders require Ms Disibio and Ms Fazzalari to produce reflect some, but not all, of the categories of documents which the Examination Orders require Mr Disibio and Mr Fazzalari to produce, and those categories are more narrowly expressed in some respects, reflecting the known involvement of Ms Disibio and Ms Fazzalari in the management of St Peters Elizabeth and the Original St Peters Businesses.

90 Each of the Examination Summonses contains an extensive set of definitions relating to terms used in the descriptions of documents which it requires the person to whom it is addressed to produce. The Examinees complain that the cumulative effect of these definitions is that each of the Examination Summonses requires the production of a wide range of documents. In particular, they point to the following definitions:

(a) “Related Entities” – defined to mean any one or more of some 14 corporations associated with Mr Disibio, Mr Fazzalari, Ms Disibio or Ms Fazzalari;

(b) “Relevant Period” – defined to mean the period 1 July 2022 to 31 March 2025;

(c) “Trading Period” – defined to mean the period 1 July 2022 to 1 October 2024; and

(d) “Other Businesses” – defined to mean any one or more of various corporations owned and operated in whole or part by any of the Related Entities, apart from the St Peters Bakehouse Businesses.

The examination summonses issued under s 596A of the Corporations Act

91 As explained at [30] above, on an application for orders for the production of documents under s 596D(2) of the Corporations Act in connection with a summons issued under s 596A, the Court has no discretion with respect to the “specified books” for which production is required. The summons is to include any such books, providing only that they (a) are in the possession of the person to whom the examination summons is addressed, and (b) relate to the corporation or to any of its examinable affairs. In relation to Mr Disibio and Mr Fazzalari, then, the only issues I consider that I should determine are whether the categories of documents which they are required to produce are in their possession and whether they relate to Café 24/7 or its examinable affairs. Given that an evident purpose of s 596A is to enable an eligible applicant to require officers of a company to produce documents relating to the company’s examinable affairs, including to investigate those affairs generally, I do not consider that the breadth of the classes of documents sought means that the originating process leading to the making of the Examination Orders was an abuse of process. Nor have the Examinees established that requiring Mr Disibio and Mr Fazzalari to produce documents falling within the scope of Café 24/7’s examinable affairs would be oppressive in the sense relevant to demonstrate that they are an abuse of process.

92 With the exception of five of the categories of documents which the examination summonses to Mr Disibio and Mr Fazzalari required them to produce, the categories are described in terms which limit the documents to documents in their “possession, custody or control”. This is consistent with s 86 of the Corporations Act, which provides that “[a] thing that is in a person’s custody or under a person’s control is in the person’s possession”, and ensures that those categories comply with the limit imposed by s 596D(2)(a). The omission of a reference to “possession, custody or control” from the remaining five categories (the seventh, eighth, seventeenth, eighteenth and nineteenth categories) appears to have been an oversight. In any case, the examination summonses should be varied so as to limit the documents to be produced by including the words “in your possession, custody or control” in respect of those five categories.

93 Several of the categories of documents sought refer to the “Relevant Period” or the “Trading Period”. The commencement of those two periods, as defined, namely 1 July 2022, correlates with the commencement of the operation by Café 24/7 of the Vili’s Elizabeth business. The documents in the categories which make reference to the relevant period relate to the examinable affairs of Café 24/7. An understanding of the course of the operations of Café 24/7’s business is relevant to the assessment of the concerns identified by Narda and to the assessment of any claims which Narda or the liquidator may have in connection with the operation of the business. In any event, the defined periods are relatively short; less than three years. I do not consider that requiring Mr Disibio and Mr Fazzalari to produce the documents in categories defined by reference to the Relevant Period or the Trading Period is oppressive.

94 The Examinees further submit that the definitions of “Other Businesses” and “Related Entities”, which are used in several of the descriptions of categories of documents which Mr Disibio and Mr Fazzalari are required to produce, are too broad, bear no relation to the concerns of Narda, and result in the Examination Orders being oppressive. I do not accept this submission. The Other Businesses and Related Entities are businesses and entities associated with and apparently controlled by Mr Disibio or Mr Fazzalari or their wives. Each category of documents which utilises the defined term “Other Businesses” or “Related Entities” seeks documents that relate to business activities of Café 24/7 and which also relate to any of the Other Businesses or Related Entities. The documents sought thus relate to the examinable affairs of Café 24/7. Given the nature of the concerns which Narda wishes to investigate, I accept that it is not oppressive to require Mr Disibio and Mr Fazzalari to produce documents in their possession which relate to employees, costs or expenses, or the payment of creditors, that have a connection with both Café 24/7 and other businesses or companies over which Mr Disibio or Mr Fazzalari or their wives were capable of exercising control.

95 The Examinees submit that the Examination Summonses seek production of documents that are likely to have been produced to Mr McPherson, and which Mr Trim, as the current liquidator of Café 24/7, is entitled to obtain from Mr McPherson. While that may be true, I am not satisfied that it is oppressive for Narda itself to seek to obtain documents in the Examinees’ possession which are documents of Café 24/7 or which relate to dealings with Mr McPherson.

96 I am satisfied that most of the categories of documents identified in the examination summonses issued to Mr Disibio and Mr Fazzalari under s 596A are documents that relate to Café 24/7 or to its examinable affairs. That conclusion is subject to the following qualifications.

97 First, the fourth category of documents sought from Mr Disibio and Mr Fazzalari is “all Documents in your possession, custody or control which relate to, refer to, or record the sale or purchase of any one or more of [St Peters Elizabeth and the Original St Peters Businesses]”. While the operation of the Original St Peters Businesses, insofar as it involved the possible use of assets or confidential information of Café 24/7, would form part of Café 24/7’s examinable affairs, the evidence does not explain why documents relating to the sale or purchase of those businesses is part of the Examinable Affairs of Café 24/7. The examination summonses issued to Mr Disibio and Mr Fazzalari should be re-cast so that they do not require production of this category of documents.

98 Secondly, the eighteenth category of documents consists of various kinds of documents relating to, referring to or recording the personal financial position of Mr Disibio and of Mr Fazzalari, and identifies four sub-categories including personal income tax returns, certain bank statements, and documents referring to or recording certain personal assets and liabilities. Documents of those kinds may relate to the examinable affairs of Café 24/7 because they are, in the language of s 53(1)(g) of the Corporations Act, “concerned with the ascertainment of the persons who are or have been financially interested in the success or failure, or apparent success or failure, of [Café 24/7]”. However, the eighteenth category of documents is inelegantly expressed. In order for the obligation to be clear, as Narda accepted in the course of oral argument, the introductory words should be deleted so that it is clear that the documents to be produced are only those described in the four sub-categories, and not all documents “relating to, referring to or recording” documents described in the four sub-categories. The reference to bank statements for accounts “to which you have or had access” should be varied to refer to bank statements for accounts “held wholly or partly for your benefit”.

99 Thirdly, the nineteenth category of documents sought extends to documents “relating to, referring to, or recording” certain policies of insurance. In order to confine that category to documents relating to the examinable affairs of Café 24/7, it should be confined to the policies of insurance themselves.

100 Narda should be given the opportunity to prepare revised terms of examination summonses, and to identify any proposed variation to the Examination Orders which may be appropriate to address the issues referred to above. The Examinees’ interlocutory application should otherwise be dismissed insofar as it relates to Mr Disibio and Mr Fazzalari.

The examination summonses issued under s 596B of the Corporations Act

101 In relation to the examination summonses issued under s 596B, the Court has a discretion, under s 596D(2), in relation to the production of documents which an examination summons may require the person to whom it is addressed to produce.

102 The first category of documents sought from Ms Disibio and Ms Fazzalari are documents which relate to, refer to or record the sale or purchase of any one or more of St Peters Elizabeth and/or the Original St Peters Businesses. As explained at [97] above, Narda has not established that documents relating to the sale and purchase of the Original St Peters Businesses (as opposed to documents relating to the operation of those businesses) relate to a matter within the examinable affairs of Café 24/7. For this reason, the examination summonses issued to Ms Disibio and Ms Fazzalari should be re-cast so that they do not require production of the first category of documents identified in Schedule 2 to the examination summonses addressed to them.

103 The documents in the second category of documents sought from Ms Disibio and Ms Fazzalari relate primarily to the transition between the cessation of the operation of the Vili’s Elizabeth business and the establishment of the St Peters Elizabeth business at the Elizabeth Site. These documents relate directly to the Illegal Phoenix Concerns, and may also be anticipated to include information relevant to the Transfer Concerns and the Confidentiality Concerns. I am satisfied that it is appropriate that Ms Disibio and Ms Fazzalari be required to produce all such documents that are in their possession, custody or control.

104 The third to eighth categories of documents relate to employment contracts, payroll records, costs and expenses and payments, and intellectual property which are connected (in particular ways described) to any one or more of St Peters Elizabeth and/or the Original St Peters Businesses and the examinable affairs of Café 24/7. These documents are relevant to the concerns which Narda seeks to investigate. Given the direct connection between Ms Disibio and Ms Fazzalari and the companies that operate the St Peters Businesses, the categories are appropriately confined and it is not oppressive to require Ms Disibio and Ms Fazzalari to produce documents in these categories. For the reasons already explained above, I consider that it is appropriate to require the production of documents relating to the “Relevant Period” and the “Trading Period”, as defined, and that it is not oppressive to require Ms Disibio and Ms Fazzalari to produce categories of documents defined by reference to those periods. It is true that the companies controlled by Ms Disibio and Ms Fazzalari did not operate the Original St Peters Businesses in the early part of the “Relevant Period” and the “Trading Period”. That may mean that it is improbable that any documents relating to those parts of the periods will be produced; in a sense, the scope of these categories of documents is limited both by the references to the “Trading Period” or the “Relevant Period” and the involvement of Ms Disibio and Ms Fazzalari in the operations of St Peters Elizabeth and the Original St Peters Businesses. I do not consider that the definition of categories by reference to those documents is oppressive or otherwise inappropriate.

105 The ninth category of documents in the examination summonses addressed to Ms Disibio and Ms Fazzalari corresponds to the eighteenth category of documents sought from Mr Disibio and Mr Fazzalari, which is addressed at [98] above. This category should also be varied in the same ways identified above. So varied, I consider that it is appropriate to require Ms Disibio and Ms Fazzalari to produce these documents.

106 The tenth category of documents in the examination summonses addressed to Ms Disibio and Ms Fazzalari corresponds to the nineteenth category of documents sought from Mr Disibio and Mr Fazzalari, which is addressed at [99] above. Again, providing the category is varied to require production only of policies of insurance, and not documents relating to, referring to or recording such policies, I consider that it is appropriate to require Ms Disibio and Ms Fazzalari to produce the documents in this category.

Conclusion

107 For the reasons explained above, the schedules to the Examination Summonses which identify the documents the Examinees are required to produce should be varied in limited respects. Narda should be given the opportunity to produce proposed amended examination summonses in accordance with these reasons, and to identify any orders which it seeks to give effect to, or in light of, these reasons. The Examinees’ interlocutory application should otherwise be dismissed.

Associate:

Dated:    3 August 2026

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